Property Transactions Flashcards
What acquisition of property powers do governmental bodies have?
Power to acquire property for public use by purchase, gift, lease, bequest, or condemnation
When may the government exercise its power of eminent domain?
Whenever:
(1) There exists a public need for the property, which must be declared in the resuolution or ordinance directing the condemnation
(2) The “condemnor,” having made a good faith offer of purchase, cannot agree with the owner as to the compensation to be paid to the owner
How is “public use” defined by the General Assembly?
Narrowly to include only:
1. Use by the public
2. Public facilities like airports, libraries, or jails
3. Use by a utility or railroad
4. To eliminate a specific “blighted” property that has become a public safety danger
5. Where an owner of property in a redevelopment or conservation area agrees to such acquisition
Who has the burden in an action?
Condemnor has burden to show planned use is “public,” and there is no presumption that the purpose is public
How much property may be taken in eminent domain?
No more than actually necessary to achieve public purpose
What is the the limitation on taking for public use?
Unless property is taken for use by a utility company or railroad right-of-way, or for a public water, sewer, or transportation project:
1. Public interest must predominate over private gain
2. Primary purpose cannot be private financial gain or to aid private enterprise or to create any other private benefit
3. Primary purpose cannot be to create an increase in the tax base or tax revenues, to create more jobs, or for economic development of locality generally
What happens if no agreement is reached after the condemnor’s “good faith offer?”
A court proceeding to acuiqre property must be brought in the circuit court where the property is located
* Measure of recovery is the fair market value of the property taken PLUS lost profits and the value of lost access
What does it mean to compensate for “lost access?”
A material impairment of direct access to a specific parcel of residue property retained by the owner because of the taking of other parts in the property
* The “loss in value of the remaining property” is compensable
* Access consequences that affect an entire community are not compensable
What does it mean to compenste for “lost profits?”
A loss of profits suffered for a period of up to 3 years as a result of a taking on the property on which a business or farm operation is located
* May be recovered only if the owner proves with reasonably certainty the amount of the loss and that the loss is directly and proximately caused through exercise of eminent domain and relocation cannot reasonably be undertaken to avoid the loss
What happens if an eminent domain proceeding does not take the entire land?
Where it is alleged that taking some of a landowner’s property has caused damage to the remaining property of that owner, the remaining property is “the residue”
* Test is what FMV was the day before “the take” compared to the day after, considering the uses to which it reasonably would be put
What are factfinders in condemnation cases called?
Jurors or commissioners (they are selected like civil jurors)
What is an “indirect taking?”
When property is taken indirectly (i.e., damaging it, or rendering it less useful)
How may a property owner recover for an “indirect taking?”
In an inverse condemnation action
* Filing a proceeding to obtain a declaratory judgment or damages
* There is no “sovereign immunity” against inverse condemnation claims
* Expressly allowed in Virginia
May municipalities obtain title through adverse possession?
Yes–by showing adverse holding that is hostile, actual, open and notorious, exclusive, and continuous
How may a municipality dispose of public property?
May sell the land (if based on onrdinance or resolution passed by three-fourths of governing obdy of municipality)
